It was incumbent on a local authority to consider their duty under section 140 of the Equality Act 2010 when assessing the usual rates to be paid to private care homes for providing residential accommodation.

7 November 2012

Administrative Court

HH Judge Milwyn Jarman QC

(1) The claimants (SW) sought judicial review of the decision taken by defendant (DCC) in setting the usual rates to be paid for the provision of residential accommodation under section 21 of the National Assistance Act 1948, section 41 of the National Health Service and Community Care Act 1990 and section 7A of the Local Authority Social Services Act 1970.

(2) SW and the intervener (EHRC) claimed firstly that DCC was in breach of the public sector duty contained in section 149(1) of the Equality Act 2010 (the 2010 Act), having failed to consider the potential discriminatory impact on elderly and disabled residents of setting the rates at a level which could result in the closure of care homes. EHRC further submitted that the set fees failed to properly differentiate between the needs of different recipients, an approach which risked discrimination against those with particularly acute needs. DCC argued that although the public sector equality duty was engaged, it was not necessary to make an assessment at the stage of setting usual rates under section 7A of the Local Authority Social Services Act 1970 (the 1970 Act) , as this was remote from the obligation to provide residential care under section 21 of the National Assistance Act 1948 (the 1948 Act), and to ascertain whether there was a requirement to provide preferred accommodation under section 47 National Health Service and Community Care Act 1974 (the 1974 Act).

SW also claimed that DCC had not fulfilled its duty to properly consult, namely by failing to provide sufficient reasons to allow consultees to consider proposals and respond to them and that the decision was irrational as it departed from a well-respected financial model.

(3) HHJ Milwyn Jarman QC held (i) that the duty to provide residential accommodation (1948 Act), the duty to assess care needs (1990 Act) and the requirement to provide the individual's preferred accommodation unless this would require the authority to pay more than they would usually pay having regard to their assessed needs (1970 Act) were linked, such that the assessment of the usual cost had the potential to affect the individual's rights under Article 8 of the European Convention on Human Rights and Article 19 of the UN Convention on the Rights of Disabled Persons. In carrying out this exercise, a local authority should have due regard to section 149 of the 2010 Act, in particular the need to eliminate discrimination and to advance equality of opportunity; R (Sefton Care Association) v Sefton Council [2011] EWHC 2676 (Admin) distinguished [43] - [44]. (ii) That DCC had not had due regard, in substance, with rigour or with an open mind, to the need to eliminate discrimination and to promote equality of opportunity amongst elderly or disabled residents. It was not sufficient that there had been or would be an individual assessment of each resident's needs under the 1990 Act. This was particularly true given that no consideration had been given to mitigating the impact of potential closures [53]. (iii) That when considering the duty to consult it was important to look at the consultation as a whole rather than focusing on one occasion on which complex information was shared; consultation process had been fair and given sufficient opportunity for meaningful response [71] - [72]. (iv) Courts were often asked to decide between two professional views. In this case the court held only a reviewing role. Although DCC had not used a well-accepted financial model, its departure from this was based on sound reasoning. The decision was not an irrational one [79], [85].